GONZALES v. MUNCHKINLAND CHILD CARE LLC (2011)

In an action, inter alia, to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), entered March 28, 2011, as granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs' motion which was for summary judgment on the issue of liability is denied.

 “As a general matter, ‘[s]chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision’ ” (Nash v. Port Wash. Union Free School Dist., 83 A.D.3d 136, 146, 922 N.Y.S.2d 408, quoting Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;  see Tanenbaum v. Minnesauke Elementary School, 73 A.D.3d 743, 744, 901 N.Y.S.2d 102;  Hansen v. Bath & Tennis Mar. Corp., 73 A.D.3d 699, 700, 900 N.Y.S.2d 365;  Armellino v. Thomase, 72 A.D.3d 849, 849, 899 N.Y.S.2d 339).  “ ‘The defendants, as providers of day care services, owed the plaintiff[s] the same duty of care and supervision owed by a reasonably prudent parent under the circumstances' ” (Douglas v. John Hus Moravian Church of Brooklyn, Inc., 8 A.D.3d 327, 328, 778 N.Y.S.2d 77, quoting Colarusso v. Dunne, 286 A.D.2d 37, 40, 732 N.Y.S.2d 424).   To recover damages pursuant to a cause of action based on negligent supervision, a plaintiff must establish that the defendant's supervision was inadequate, and that the negligent supervision was a proximate cause of the injured plaintiff's injuries (see e.g. Bloomfield v. Jericho Union Free School Dist., 80 A.D.3d 637, 639, 915 N.Y.S.2d 294).  “ ‘[T]o establish a breach of the duty to provide adequate supervision in a case involving injuries caused by the acts of fellow students, a plaintiff must show that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury;  that is, that the third-party acts could reasonably have been anticipated’ ” (Nash v. Port Wash. Union Free School Dist., 83 A.D.3d at 150, 922 N.Y.S.2d 408, quoting Doe v. Department of Educ. of City of N.Y., 54 A.D.3d 352, 353, 862 N.Y.S.2d 598 [internal quotation marks omitted];  see Brandy B. v. Eden Cent. School Dist., 15 N.Y.3d 297, 302, 907 N.Y.S.2d 735, 934 N.E.2d 304;  Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263).  “ ‘[S]chool personnel cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily’ ” (Nash v. Port Wash. Union Free School Dist., 83 A.D.3d at 150, 922 N.Y.S.2d 408, quoting Armellino v. Thomase, 72 A.D.3d at 850, 899 N.Y.S.2d 339 [internal quotation marks omitted];  see Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263).  “ ‘Thus, a student's injury which is caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act’ ” (Nash v. Port Wash. Union Free School Dist., 83 A.D.3d at 150, 922 N.Y.S.2d 408, quoting Armellino v. Thomase, 72 A.D.3d at 850, 899 N.Y.S.2d 339 [internal quotation marks omitted];  see Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263).

 Here, the evidence tendered by the plaintiffs in support of that branch of their motion which was for summary judgment on the issue of liability failed to establish their prima facie entitlement to judgment as a matter of law.   Since the plaintiffs failed to meet their prima facie burden, the Supreme Court erred in granting this branch of the plaintiffs' motion, regardless of the sufficiency of the defendants' opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

We decline to address the defendants' remaining contention because it was improperly raised for the first time on appeal (see Bay Crest Assn., Inc. v. Paar, 72 A.D.3d 713, 714, 898 N.Y.S.2d 857;  see also Sarva v. Chakravorty, 34 A.D.3d 438, 439, 826 N.Y.S.2d 74;  Orellano v. Samples Tire Equip. & Supply Corp., 110 A.D.2d 757, 758, 488 N.Y.S.2d 211).